Gujarat State Road Transport ... vs Kantilal Chhotubhai Patel
2023 Latest Caselaw 2266 Guj

     C/SCA/7487/2021                             ORDER DATED: 15/03/2023




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 7487 of 2021

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           GUJARAT STATE ROAD TRANSPORT CORPORATION
                             Versus
                   KANTILAL CHHOTUBHAI PATEL
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Appearance:
RUSHABH H MUNSHAW(8958) for the Petitioner(s) No. 1
MR HEMAL K ACHARYA(6021) for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                           Date : 15/03/2023

                            ORAL ORDER

1. The present petition is filed by the petitioner-

Gujarat State Road Transport Corporation challenging the

award dated 25.11.2019 passed by the learned Industrial

Tribunal, Surat in Reference (IT) No.14 of 2012, whereby

the Tribunal has allowed the said reference preferred by

the respondent-workman and the punishment of stoppage

of four increments with future effect imposed upon the

workman (driver) by the disciplinary authority of the

petitioner has been quashed and set aside.

2. Rule. Learned advocate Mr.Hemal Acharya

waives service of notice of rule for respondent. With the

consent of the learned advocates for the parties, this

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petition is heard and disposed of finally.

3. The brief facts leading to filing of this petition

are as under:

3.1. The respondent herein was working as driver

with the petitioner-Corporation and was driving bus

bearing registration no.GJ.18V.4618 enroute from Navsari

to Krishnagar. That on 13.7.2007, due to the rash and

negligent driving on the part of the respondent herein,

on student lost her life, for which FIR came to be

registered and thereafter chargesheet was submitted.

Departmental inquiry was initiated against the

respondent, and after providing sufficient opportunity of hearing, and after completion of the inquiry, the order

was passed for stoppage of four increments with future

effect on 30.4.2008. Against the said order, the

respondent preferred appeal before the appellate authority

which was dismissed vide order dated 20.5.2009.

Thereafter, even the review proceedings initiated by the

respondent-workman were dismissed vide order dated

14.9.2019. Further, the respondent-workman preferred

Reference (IT) No.14 of 2012 before the Industrial

C/SCA/7487/2021 ORDER DATED: 15/03/2023

Tribunal, Surat, which was allowed vide award dated

25.11.2019 quashing and setting aside the penalty

imposed upon the workman and directed the petitioner

herein to refix the pay of the workman after granting

him notional benefits. Hence, the petitioner-Corporation

has preferred this petition.

4. Heard learned advocate Mr.Rushabh Munshaw

for the petitioner and learned advocate Mr.Hemal

Acharya for the respondent.

4.1 Learned advocate Mr.Munshaw for the

petitioner submitted that the Tribunal has committed

gross error by not considering the fact that the charge which is levelled against the present respondent-workman

is proved in the disciplinary proceedings and one of the

charge which is not proved, the disciplinary authority

has not considered the same while granting the

punishment. He has further submitted that the learned

Industrial Tribunal has committed gross error in

interfering with the findings and punishment awarded by

the disciplinary authority; that the punishment which is

imposed by the disciplinary authority is in proportionate

C/SCA/7487/2021 ORDER DATED: 15/03/2023

to the misconduct or charges proved which pertain to the

negligence of the driver while driving the ST bus due to

which one girl student lost her life due to such accident.

Therefore, after considering the relevant evidence

available on the record, the disciplinary authority has

found that there is some negligence on the part of the

respondent workman who should take all necessary care

while driving the vehicle and therefore the authority has

not committed any error while imposing penalty of

stoppage of four increments with future effect and the

same is absolutely proportionate, just and legal. He has

further submitted that the Tribunal has not proceeded

with the aforesaid reference on the ground that the

departmental inquiry was not conducted as per the law. He has further submitted that the Tribunal ought to

have appreciated that it is established principle of law

that when the departmental inquiry has been conducted

in just and legal manner, then learned Tribunal cannot

act as an appellate authority and interfere with the

penalty imposed by the employer, more particularly,

when the punishment imposed is less than the

termination of the service. He has relied on the

judgment in the case of Gujarat State Road Transport

C/SCA/7487/2021 ORDER DATED: 15/03/2023

Corporation V/s Prabhashankar K Acharya, reported in 1992(2) GLH 354, whereby interpreting the powers of the

Tribunal under Section 11A of the Industrial Disputes

Act, this Court has held that in cases where the charge

of misconduct is proved in a domestic inquiry held in

accordance with the principles of natural justice and

punishment imposed by management is less than the

discharge or dismissal, it is not open for the Labour

Court or Tribunal to interfere with the same and

substitute its own penalty.

4.2 Learned advocate Mr.Munshaw has further

submitted that the order passed by the learned Tribunal

is contrary to the ratio laid down by this Court in the

case of Divisional Controller V/s C.S.Parmar in Special Civil Application No.16997 of 2013 , whereby the Court relying upon the judgment passed by this Court in case

of Prabhashankar K Acharya (supra), has held that

reference cases where the departmental inquiry is

conducted in fair and legal manner and charge of

misconduct is proved, the Labour Court or the Tribunal

does not have jurisdiction to interfere with the quantum

of penalty which is less than the penalty of dismissal or

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discharge. In view of that, learned advocate Mr.Munshaw

has prayed that the Tribunal has grossly erred in

exercising powers under Section 11A of the Industrial

Disputes Act and committed error in interfering with the

punishment imposed by the disciplinary authority which

is stoppage of four increments with future effect. He

therefore, prayed that due to the negligent driving of the

respondent workman, one child has lost her life and

therefore he has prayed to allow this petition by

quashing and setting aside the impugned award.

5. Per contra, learned advocate Mr.Acharya

appearing for the respondent workman has stated that

the Tribunal has rightly considered all the aspects in the impugned judgment and has given cogent and convincing

reasons. He has submitted that the learned Tribunal has

dealt with the issue no.2 which pertains to whether the

inquiry officer has given the finding at the end of

inquiry and is in accordance with the evidence available

on the record, to which the learned Tribunal has found

that when the accident has occurred on the conductor

side, the driver cannot be held totally liable for the said

accident and therefore learned Tribunal has rightly

C/SCA/7487/2021 ORDER DATED: 15/03/2023

construed that the finding which is recorded by the

inquiry officer is contrary to the evidence available on

the record. He has further submitted, by relying on the

cross-examination of the witness by the respondent-

workman, that none of the witnesses were present at the

time of incident and therefore it cannot be said that

they are eye witnesses and therefore picking some

portion from their deposition and relying that in the

departmental inquiry is not permissible in view of the

Indian Evidence Act and therefore he has submitted that

the impugned finding of the departmental inquiry is not

in accordance with law and therefore learned Industrial

Tribunal has rightly interfered with the findings by

exercising powers under Section 11A of the I.D.Act and therefore no interference is required by this Court by

exercising powers under Article 226 of the Constitution

of India as there is no legality or perversity in the

impugned award. He submitted that even in the criminal

proceedings, the workman is acquitted by the concerned

criminal Court. He, therefore, prayed to dismiss this

petition.

6. I have considered rival submissions and I have

C/SCA/7487/2021 ORDER DATED: 15/03/2023

considered the material placed on the record. From the

record, it transpires that the inquiry which is conducted

against the petitioner is in accordance with law, after

giving proper opportunity of hearing to the respondent

workman, the respondent workman has cross-examined

the witness during the departmental inquiry and inquiry

officer, after considering certain facts, had come to the

conclusion that the respondent workman has not taken

proper care while driving the ST bus in the ST depot

and due to that one student had lost her life. The

inquiry proceeding is accepted by the respondent

workman during the reference before the learned

Tribunal by submitting application that the workman has

not challenged the validity and legality of the inquiry proceeding but he has challenged the finding of the

inquiry.

7. At this stage, it is relevant to refer to the

judgment of Division Bench of this Court in the case of

Prabhashankar K Acharya (supra), wherein it is observed in paragraphs 16 to 19 and 23, which covers the issue

involved in this petition, read as under:

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"16. We shall now proceed to consider the scope and ambit of Sec. 11A, Industrial Disputes Act. Provisions of Sec. 11A were incorporated as the Supreme Court made certain observations, as set out above, in Indian Iron & Steel Company Limited (supra). The Supreme Court, while considering the Tribunal's power to interfere with the management's decision to dismiss, discharge or terminate the services of workman, observed that in case of dismissal of misconduct, the Tribunal does not act as a Court of Appeal and substitute its own judgment for that of the management and that the Tribunal will interfere only when there is want of good faith, victimisation, unfair labour practice, etc. The International Labour Organization in its recommendation concerning 'termination of employment at the initiative of the employer' adopted in Jun. 1963, recommended that the worker aggrieved by the termination of his employment should be entitled to appeal against the termination, amongst others, to a natural body such as an arbitrator, a Court, an arbitration committee or a similar body and such body should be empowered to examine the reason given in the termination of employment and the other circumstances relating to the case and to render a decision on the termination. The International Labour Organization also recommended that the neutral body should be empowered to afford some other relief. As set out in the objects and the statement of the Amending Act 45 of 1971, the said reasons led to the insertion of Sec. 11A in the statute book. Sec.

 C/SCA/7487/2021                                               ORDER DATED: 15/03/2023




 11A,      Industrial          Disputes     Act     provides         that   where        an

Industrial Dispute relating to the discharge or dismissal of the workman has been referred to the Labour Court, Tribunal or National Tribunal, for adjudication and, in the course of the adjudication proceedings, the Labour Court, Tribunal or National Tribunal as the case may be, is satisfied that the order of discharge or dismissal was not justified, it may, by its award, set aside the order of discharge or dismissal and direct reinstatement of the workman on such terms and conditions, if any, as it thinks fit, or give such other relief to the workman including the award of any lesser punishment in lieu of discharge or dismissal as the circumstances of the case may require. The submission of learned Advocates appearing for the management is that the power is confined only for the punishment of discharge or dismissal, while the submission of the learned Advocate appearing for the workman is that the intention of the Legislature was to empower or vest the jurisdiction to interfere with other kinds of punishment or to substitute one kind of punishment for another. Sec. 11A only empowers the Labour Court or the Tribunal to interfere with the punishment regarding the discharge or dismissal of the workman and it does not specifically refer to any other kind of punishment. It also empowers the Labour Court or Tribunal to interfere with the order of discharge or dismissal if it is not satisfied that such punishment was justified and in that case, it may set aside the order of

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discharge or dismissal and direct the reinstatement on such terms and conditions as it may think fit. The Labour Court or Tribunal may, in such cases, grant other relief including the lesser punishment in lieu of discharge or dismissal. As the section does not refer to other kinds of punishment, which the management is entitled to award for certain acts of misconduct, it cannot be accepted that this Section empowers and vests jurisdiction in the Labour Court or Tribunal to interfere with the order of punishment or to substitute other kinds of punishment than the one imposed by the management. The Legislature must be aware of the restricted jurisdiction and the powers of the Labour Court of the Industrial Tribunal enunciated by various judgment of the Supreme Court, as discussed above, and even then did not vest the jurisdiction or empower the Labour Court or the Industrial Tribunal to interfere with or substitute other kinds of punishment than that of the discharge or dismissal. If at all the intention of the Legislature, would have been to substitute other punishment, it would have specifically included them in Sec. 11A and would not have confined it to the punishment of discharge or dismissal. It also cannot be accepted that it reflects the intention of the policy of the Legislature and, therefore, the said principles should also be made applicable to other kinds of punishment. If at all that would have been the policy and the Legislature wanted to restrict the managerial power for other kinds of punishment, there was no reason for not making such provisions in Sec.

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11A or in any other provisions of the Act.

17. The provisions of Sec. 11A are extensively considered by the Supreme Court in The Workmen of M/s Firestone Tyre & Rubber Co. of India P. Ltd. V/s. The Management and Others, A. I. R. 1973 SC 1127, in which the purposes and objects of incorporating Sec. 11A are set out. Their Lordships were considering the interpretation of Sec. 11A, Industrial Disputes Act. After extensively discussing and setting out the law on the powers and jurisdiction of the Labour Court or Industrial Tribunal under the Industrial Disputes Act, Their Lordships considered change in the legal position effected by the incorporation of Section 11A and in terms observed that in the cases in which the employer had held the proper and valid domestic inquiry before passing of the order of punishment, the Tribunal had no power to interfere with the finding of misconduct recorded by the domestic inquiry unless the infirmity as pointed out in the case of Indian Iron & Steel Co. Ltd. (supra) existed. The conduct of the disciplinary proceeding and the punishment to be imposed were all considered to be the managerial function which the Tribunal has no power to interfere unless the findings were perverse or the punishment was so harsh as to lead to inference of victimisation or unfair labour practice. This position is now clothed with the power to reappraise the evidence in the domestic enquiry and satisfy itself whether the said evidence relied on by the employer

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established the misconduct alleged against the workman. What was originally plausible conclusion that could be drawn by an employer from the evidence, has now given place to the satisfaction being arrived at by the Tribunal that the finding of the misconduct is correct. The limitations imposed on the power of the Tribunal by the decision in Indian Iron & Steel Company Ltd. no longer be invoked by the employer and the Tribunal is at liberty to consider not only whether the finding of misconduct recorded by the employer is correct, but also to differ from the said finding if a proper case is made out. What was once largely in the realm of the satisfaction of the employer has ceased to be so, and now it is the satisfaction of the Tribunal that finally decides the matter. Considering the provisions of Sec. 11A, Industrial Disputes Act, Supreme Court in Ramakant Misra V/s. State of U. P. and Others, A. I. R. 1982 SC 1552 observed that, it is now clear that the Labour Court has the jurisdiction and power to substitute its measure of punishment in place of managerial wisdom once it is satisfied that the order of discharge or dismissal was not justified in the facts and circumstances of the case. It is also observed that before exercising the discretion conferred under Sec. 11A, the Court has to be satisfied that the order of discharge or dismissal was not justified in the facts and circumstances of the case and the said words indicate that, even though the misconduct is proved and the penalty has to be imposed, the extreme penalty of dismissal or discharge

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was not justified in the facts and circumstances of the case meaning thereby that the punishment was either disproportionately heavy or excessive. Their Lordships of the Supreme Court in case of The Workman of Firestone Tyre and Rubber Co. (supra) proceeded to consider the circumstances in which no inquiry is held by the employer or even if the inquiry is held, the same is held to be defective. In such a case, the Tribunal in order to satisfy itself about the legality and validity of the order had to give an opportunity to the employer and employee to adduce evidence, even for the first time justifying the action. Even after the incorporation of Sec. 11A, that legal position has remained unchanged. In that case also the issue about the merits of the impugned order of dismissal or discharge is at large before the Tribunal and then it has to decide whether the misconduct alleged is proved and the exercise of managerial function does not arise at all. Their Lordships observed that, both in respect of cases where the domestic inquiry has been held as also in the cases where the Tribunal consider the matter on the evidence adduced before it for the first time, the satisfaction under Sec. 11A about the guilt or otherwise of the workman concerned is that of the Tribunal. It has to consider the evidence and come to a conclusion one way or the other. Even in the cases where an inquiry has been held by the employer and the finding of misconduct is arrived at, the Tribunal can differ from that finding in a proper case and hold that no misconduct

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is proved. The Tribunal will have to reappraise the evidence for itself arriving at the proper conclusion. Ultimately, the Tribunal may hold that the misconduct is not proved or that the misconduct proved does not warrant the punishment of dismissal or discharge. Sec. 11A gives full power to the Tribunal to go into the evidence and satisfy itself on both these points. The another change that has been effected by Sec. 11A is the power conferred on the Tribunal to alter the punishment imposed by the employer. Even though in case the misconduct is held to be established, the Tribunal may be of the opinion that the order of discharge or dismissal for the said misconduct is not justified and does not merit punishment by way of discharge or dismissal. In such circumstances, Tribunal may award only lesser punishment. The power to interfere with the punishment and alter the same is conferred by Sec. 11A on the Tribunal. These observations by the Supreme Court are an answer to the arguments advanced by the learned Advocates for the management. The effect and the change in the law by Sec. 11A is, however, relating to the punishment of discharge and dismissal and not for other kinds of punishment. Managerial rights are now restricted to that extent under Sec. 11A and the jurisdiction of the Labour Court and the Tribunal is widened to that extent so far as the finding of misconduct and the punishment of discharge and dismissal are concerned. The law on the point for other kinds of punishment except the punishment of discharge or

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dismissal remains unaffected by the provisions of Sec. 11A, Industrial Disputes Act.

18. The powers and the jurisdiction of the Labour Court and the Industrial Tribunal to interfere with the finding of misconduct and order imposing the punishment other than the punishment of discharge or dismissal is restricted even though the Labour Court or Tribunal had wider powers than revisional powers. It cannot exercise the powers of an appellate authority and reappraise the evidence and set aside the finding only because the other view is possible or even plausible. The Labour Court or the Tribunal also cannot interfere with the nature or the quantum of the punishment casually because it considers to impose other kind of punishment or to impose lesser punishment than the one awarded by the management. The Tribunal can interfere with the finding of misconduct or the nature and the quantum of the punishment only under the circumstances as set out above and specifically by various judicial pronouncements. The Tribunal can interfere with the finding of the management in the following circumstances : [(1) Want of good faith.] [(2) Victimisation or unfair labour practice.] [(3) Basic error or violation of principles of natural justice.] [(4) Finding completely baseless or perverse.] [(5) Colourable exercise of power or want of bona fide, and] [(6) Punishment shockingly disproportionate regard being had

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to the particular conduct or the past record or is such that no reasonable employer would ever impose in like circumstances unless he is actuated by considerations of victimisation or natural labour practice.] The above circumstances are illustrative and not exhaustive and the Tribunal can interfere with the finding or the punishment in circumstances alike also, but the Tribunal cannot interfere with the finding or nature and quantum of punishment casually or as if exercising appellate jurisdiction.

19. The submission of Shri Shelat, learned Advocate for the management that the Tribunal has no jurisdiction at all to interfere with the order in inquiry in which the punishment other than that of the discharge or dismissal is imposed, cannot be accepted. Shri Shelat submits that provisions of Sec. 11A, Industrial Disputes Act only empower the Tribunal to interfere with the order in which the punishment of discharge or dismissal is imposed and in no other order and, therefore, the Tribunal cannot interfere with any other order in which the other punishment is imposed. There is no provision under the Act prohibiting the Tribunal in exercising the jurisdiction except in the case of punishment of discharge or dismissal. We have extensively discussed the provisions of Sections. 7, 7A and 15, and the Schedule, and it is evident that the Tribunal has jurisdiction even to interfere with the order imposing the punishment other than that of discharge or dismissal. Even prior to the

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incorporation of Sec. 11A, Industrial Disputes Act, the jurisdiction of the Tribunal to interfere with the order of punishment is recognized and accepted by the courts, of course, that is only under certain circumstances as discussed above. The acceptance of the submission would lead to absurd results and even in case of punishment other than that of discharge or dismissal which may lead to victimisation, the Tribunal will not be in a position to interfere and give proper justice to the workman.

23. The Tribunal found that the respondent-driver was negligent and the accident resulted in the death of the shepherd and some goats. In view of the Tribunal, the punishment of putting the respondent driver back in the lowest stage of the time-scale is too harsh and the recurring monthly loss would be about Rupees 100/--. The Tribunal, accordingly, substituted the punishment by the punishment of withholding of the increments for two years with permanent effect. It is, therefore, evident that the Tribunal found that the driver was negligent and the death of the shepherd and goats were caused by the negligent driving of the driver, and even then, interfered with the order of punishment by observing that it is too harsh. It appears that the Tribunal failed to appreciate the fact that the respondent driver was reinstated in service by the appellate authority. The punishment awarded can never be considered to be shockingly harsh or the act of victimisation. As such,

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there was no convincing reason for the Tribunal to interfere with the order by the appellate authority. The order by the Tribunal, therefore, should be set aside and that of the appellate authority should be reinstated. We, therefore, allow the petition, set aside the order by the Tribunal and restore the order passed by the appellate authority. Rule is made absolute with no order as to costs."

8. In the case of Special Civil Application

No.16997 of 2013 dated 25.2.2016 of coordinate Bench of

this Court, which is relied on by the petitioner, it is

observed in paragraphs 19 and 20 as under:

"19. The Hon'ble Division Bench of this Court has held in case of Gujarat State Road Transport Corporation versus Prabhashanker K. Acharya, reported in 1992 (2) G.L.H. 354 that in reference cases where the departmental inquiry is conducted in legal and fair manner and the charge of misconduct is proved, the learned Labour Court or learned Tribunal does not have jurisdiction to interfere with the quantum of penalty which is short of / less than penalty of dismissal or discharge. In this view of the matter, order passed by the learned Tribunal is passed by exercising jurisdiction conferred under Section 11(A) of the Act in contrary manner and the impugned award suffers from error of law and jurisdiction inasmuch as the learned Tribunal

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has transgressed the jurisdiction and authority conferred on and available to the Court under the Act."

9. At this stage, it is relevant to reproduce

Section 11A of the Industrial Disputes Act, which reads

as under:

"11A Powers of Labour Courts, Tribunals and National Tribunals to give appropriate relief in case of discharge or dismissal of workmen - Where an industrial dispute relating to the discharge or dismissal of a workman has been referred to a Labour Court, Tribunal or National Tribunal for adjudication and, in the course of the adjudication proceedings, the Labour Court, Tribunal or National Tribunal, as the case may be, is satisfied that the order of discharge or dismissal was not justified, it may, by its award, set aside the order of discharge or dismissal and direct re-instatement of the workman on such terms and conditions, if any, and it thinks fit, or give such other relief to the workman including the award of any lesser punishment in lieu of discharge or dismissal as the circumstances of the case may require:

Provided that in any proceeding under this section the Labour Court, Tribunal or National Tribunal, as the case may be, shall rely only on the materials on record and shall

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not take any fresh evidence in relation to the matter."

10. In view of the above discussion, this Court is

of the opinion that the learned Tribunal has committed

material error in interfering with the findings and

conclusion of the departmental inquiry by exercising

powers under Section 11A of the I.D.Act and by

substituting the penalty imposed by the disciplinary

authority and such findings are contrary to law and

contrary to the material placed on record.

11. Accordingly, this petition is allowed. The

impugned judgment and award dated 25.11.2019 passed

by the learned Industrial Tribunal, Surat in Reference

(IT) No.14 of 2012 is quashed and set aside. Rule is made absolute.

(SANDEEP N. BHATT,J) SRILATHA